Fla. Court Overturns Ruling Against Voucher Program

In what is at least a temporary victory for advocates of private
school vouchers, a Florida appeals court ruled last week that the
state's voucher program does not violate a key state constitutional
provision establishing a public school system.

A three-judge panel of the state's 1st District Court of Appeal in
Tallahassee unanimously overturned a trial judge's March ruling that
the Opportunity Scholarship Program violated on its face the
constitutional requirement for a "uniform" system of free public
schools. (Read the opinion of the 1st District Court of Appeals in
John
Ellis "Jeb" Bush, et al. v. Ruth D. Holmes, et al..)

But the latest ruling does not mean an end to the legal challenge to
the program, which was enacted last year as part of Gov. Jeb Bush's "A+
For Education" plan.

The program allows children in public schools that receive failing
grades two years in a row to transfer to other public schools or use
publicly funded tuition vouchers to attend private schools, including
religious schools. Neither court has addressed challengers' arguments
that the program also violates state and federal constitutional
prohibitions against government support for religion.

The program "isn't in the clear yet," acknowledged Matthew Berry, a
staff lawyer for the Institute for Justice, a Washington advocacy group
that is representing voucher families in the litigation. "There's a
long way to go, but it is good to have a victory under our
belts."

Church and State

The appeals court held that Judge L. Ralph Smith of Leon County
Circuit Court was wrong to rule that the legislature lacked authority
under the Florida Constitution to enact the voucher program.

Nothing in the constitution's provision about a free, uniform public
school system "prohibits the legislature from allowing the
well-delineated use of public funds for private education," said the
Oct. 3 opinion by Appeal Court Judge Charles Kahn. He noted that the
legislature has established, and the state supreme court has upheld, a
program under which special education students attend private schools
at public expense.

The court declined an invitation from the challengers, led by
teachers' unions and civil liberties groups, to decide whether the
program is an unconstitutional establishment of religion. It sent the
case back to Judge Smith to determine that issue.

But a leading opposition lawyer said the challengers would first ask
the Florida Supreme Court to take up the case and to decide the
religion question as well as review the appeals court's
conclusions.

"It's unfortunate the court of appeal was unwilling to strike down
this program and put it out of its misery," said Robert H. Chanin, the
general counsel of the National Education Association, who has argued
against voucher programs in courtrooms across the country.

"We will urge the state supreme court to overturn the appeals court
... and to address whether the program violates the separation of
church and state," Mr. Chanin added.

But Mr. Berry said he doubted the supreme court would address issues
that have yet to be ruled on in the lower courts. Voucher proponents
are eager to compile a factual record in defense of the program in the
trial court, he said.

Florida's program has been allowed to continue operating during the
legal challenge. So far, however, only two Pensacola elementary schools
have received F's on state evaluations for two years, thus making their
students eligible for the program. About 50 students from those schools
last year began using vouchers worth about $4,000 to attend private
schools.

In a surprise to both sides of the voucher debate, other low-scoring
public schools improved their performance sufficiently on state tests
last spring to avoid meeting the program's provisions. ("Vouchers Stall as Fla. Schools Up
Their Scores," July 12, 2000.)

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